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Kiernan v. Miller

Decided: July 16, 1992.

JAMES J. KIERNAN, PLAINTIFF,
v.
AL MILLER (IMPROPERLY IMPLEADED AS MILLER INVESTMENT CO.), OXFORD CONSTRUCTION CO. INC., LOUIS ROTHBERG & SONS AND RUSSELL FRANCIS AND JOHN DOES A TO Z, DEFENDANTS



Menza, J.s.c.

Menza

Defendant moves to dismiss the plaintiff's claim on the basis that it is barred by the fireman's rule.

The question presented in this case is whether the fireman's rule applies to a volunteer first aid worker who is injured while rendering medical assistance to an injured person.

This is a novel question.

Plaintiff is a volunteer first aid worker associated with an emergency medical service known as the Collman Emergency Unit. Collman has an arrangement with the Township of Union to provide ambulance and first aid services to the residents of the township.

On January 11, 1991, plaintiff responded to a call for medical assistance for a person injured at a construction site. On arriving at the scene, plaintiff entered an excavation ditch in order to render assistance to the injured person. While rendering assistance, the sidewalls of the ditch caved in on the plaintiff causing him injury.

Although the plaintiff receives no remuneration for his work, he does receive workers' compensation benefits and has filed a workers' compensation claim for the injuries he sustained in the accident.

In Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960), the Supreme Court held that an owner or occupier of land is not liable to paid firemen for negligence with respect to the creation of a fire. The Court discussed assumption of risk as a rationale for the rule:

The rationale of the prevailing rule is sometimes stated in terms of "assumption of risk," used doubtless in the so-called "primary" sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. (citation omitted). Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. (at 273-274, 157 A.2d 129).

It then discussed the public policy considerations underlying the rule:

Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling. (at 273-274, 157 A.2d 129).

In Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983), the Court extended the fireman's rule to police officers. In doing so, the Court elaborated on the rationale forming the basis for the rule:

The similarity between firefighters and police officers compels the extension of the rule [fireman's rule] to the latter. Both are paid to confront crises and allay dangers created by an uncircumspect citizenry, a circumstance that serves to distinguish firefighters and police from most other public employees. Citizens summon police and firefighters to confront danger. Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created ...


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